Irishman fined €2,000 for Facebook ‘frape’
An Irish court has brought the first prosecution for criminal damage to a social media account, fining a man €2,000 for falsely posting an offensive status update on his ex-girlfriend’s Facebook account.
Referred to by the slang term to “frape”, a conflation of the words ‘Facebook” and “rape”, the practice involves impersonating the account holder and making a false post on their behalf.
Dublin’s central criminal court heard that the defendant, a 30-year-old man from Donegal who cannot be named for legal reasons, went to confront his ex-girlfriend on April 6 2011 over a perceived infidelity and left, having taken her mobile phone.
After reading text messages which confirmed she was in a new relationship, he used the phone to log into her Facebook account, posting a status update in her name stating that she was a “whore” who would take “any offers”.
He was arrested shortly afterwards, and admitted making the false post.
Prosecutors in the case took the unprecedented step of using Ireland’s Criminal Damage Act 1991 to bring charges, a law that is more commonly used for disputes involving physical damage to property.
The defendant pleaded guilty to one count of criminal damage, and at a sentencing hearing on Monday at Dublin’s central criminal court was fined €2,000. He was acquitted last month by a jury on separate charges of raping and falsely imprisoning the woman in her own home on the same date.
Mr Justice Garrett Sheehan said that there was no relevant precedent to guide him in sentencing, but felt a financial penalty was the most appropriate.
The Financial Times has approached Facebook to comment on the case, but the company declined to make a statement.
Media lawyers in the UK agreed it was an unusual precedent to bring a prosecution under criminal damage laws, but noted that Irish laws were less attuned to the internet age.
“I’ve never heard of a conviction for someone purloining another person’s Facebook account, but English law is rather beyond using criminal damage to do so,” said Dan Tench, media lawyer at Olswang.
Although lawyers were not aware of a criminal “frape” conviction ever being sought in the UK, they said a different legal approach would probably be taken were it to happen.
“If the defendant had made these comments on his own social media account, I’d be surprised if it resulted in police involvement. To hack into and place it on his ex-girlfriend’s account puts it in a different territory,” Mr Tench added.
In his opinion, an English court might prosecute any similar cases for the harassing, malicious or grossly offensive nature of the postings under a range of statutory offences or under the Computer Misuse Act. However, the director of public prosecutions has previously issued guidance to limit such cases to the most serious.
“In some examples of hacking, the offence of interception of communications under the Regulation of Investigatory Powers Act could also be used, but this is unlikely for social media cases,” he said. “The victim could also bring a civil claim for example in libel or for a breach of her privacy.”
Mr Tench has previously represented clients in civil cases who have sued for damages after false social media accounts were created in their name.
Niri Shan, head of media at the law firm Taylor Wessing, added that he thought it was “very unlikely” that there would ever be a criminal prosecution for “frape” in an English court.
“It is much more likely to be the subject of a civil claim, as the Crown Prosecution Service probably has more important priorities,” he said.
“If I was advising a client in this situation, I would seek civil remedies including an undertaking that [the perpetrator] wouldn’t do it again, and also damages.”
Source: ft